93 Decision Citation: BVA 93-12205
Y93
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
DOCKET NO. 92-03 562 ) DATE
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THE ISSUE
Entitlement to an increased evaluation for residuals of recurrent
separation of the left shoulder, currently evaluated as 10 percent
disabling.
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
P. A. Dowdell, Associate Counsel
INTRODUCTION
The veteran served on active duty from October 1972 to October 1974.
This matter came before the Board of Veterans' Appeals (hereinafter
the Board) on appeal from rating decisions of July and September 1990,
from the Indianapolis, Indiana, Regional Office (RO), which denied an
evaluation in excess of 10 percent for residuals of recurrent
separation of the left shoulder. A notice of disagreement was
received in August 1991. A statement of the case was issued in
September 1991. A substantive appeal was received in November 1991.
A hearing was held before a hearing officer at the RO in February 1992
who confirmed and continued the 10 percent rating by a decision that
same month. The appeal was received at the Board and docketed in
March 1992. By decision dated in September 1992, the Board of
Veterans' Appeals remanded this case to the RO for further development
of the medical evidence. In December 1992, the RO subsequently
rendered a rating action to confirm and continue the denial of an
evaluation in excess of 10 percent for the recurrent separation of the
left shoulder. A supplemental statement of the case was issued in
January 1993. The case was returned to the Board and docketed in
April 1993. The veteran is unrepresented in his appeal. The case is
now ready for appellate review.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends, in essence, that the RO erred in denying
an evaluation in excess of 10 percent for residuals of recurrent
separation of the left shoulder.
DECISION OF THE BOARD
In accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991),
following review and consideration of all evidence and material of
record in the veteran's claims file, and for the following reasons and
bases, it is the decision of the Board that the preponderance of the
evidence is against the claim for an increased rating for residuals of
recurrent separation of the left shoulder.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable disposition of
the veteran's appeal has been obtained.
2. The veteran's current residuals of recurrent separation of the
left shoulder are primarily manifested by complaints of shoulder pain.
3. Neither an unusual nor exceptional disability picture has been
demonstrated so as to render impractical the application of the
regular schedular standards.
CONCLUSIONS OF LAW
1. The schedular criteria for an evaluation in excess of 10 percent
for residuals of recurrent separation of the left shoulder have not
been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. Part 4,
§§ 4.7, 4.71a, Diagnostic Codes 5201, 5202, 5203 (1992).
2. The criteria for an extraschedular evaluation for residuals
of recurrent separation of a left shoulder have not been met.
38 U.S.C.A. § 3.321(b) (1992).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Board notes that the veteran's claim is "well-grounded" within the
meaning of 38 U.S.C.A. § 5107. That is, the Board finds that he has
presented a claim which is plausible. We are also satis-fied that all
relevant facts have been properly developed. No further assistance to
the veteran is required to comply with the duty to assist mandated by
38 U.S.C.A. § 5107.
Service connection for recurrent left shoulder separation was granted
in a rating action dated November 22, 1976, following a review of
service medical records. A 10 percent evaluation was assigned and has
been in effect for this condition since October 31, 1974.
The veteran has appealed the continuation of the 10 percent evaluation
for residuals of recurrent separation of the left shoulder.
Disability evaluations are based upon the average impairment of
earning capacity as contemplated by a schedule for rating
disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. The severity of
residuals of recurrent separation of the left shoulder are determined,
for VA's rating purposes, by application of the provisions of
Diagnostic Codes 5201, 5202 and 5203 of the VA Schedule for Rating
Disabilities, 38 C.F.R. Part 4 (1992) (hereinafter Schedule). Under
these criteria, a rating greater than that currently in effect may be
granted if the residuals of
recurrent separation of the left shoulder are manifested by limitation
of arm motion at shoulder level, malunion of the humerus with moderate
deformity, dislocation of the clavicle or scapula, or by nonunion of
the clavicle or scapula resulting in loose movement.
These criteria are not met. At the VA examination conducted in May
1990, the veteran reported he incurred a shoulder dislocation in 1972.
He indicated that he had had 15 to 20 recurrences and that the last
recurrence was a year ago. On physical examination, there was
positive apprehension, and the left shoulder was able
to externally rotate beyond 10 degrees. There was no acromiocla-
vicular tenderness. Assessment was recurrent dislocation of the left
shoulder. X-rays dated in May and June 1990 were negative for
dislocation. An X-ray dated in August 1990 indicated normal left
shoulder arthrogram. The joint space was normal in size and shape,
the articular cartilage of the humeral head was normal,
the biceps tendon and tendon sheath were normal, and there was no
evidence of rotator cuff tear.
The veteran provided sworn testimony at a RO hearing in February 1992
which he reported left arm numbness, loss of movement, pain and muscle
spasm. He denied he had been treated by a private physician within
the past year, and utilized only over-the-counter pain medication. He
indicated he was self-employed and did not refer to time lost from
work due to the disability at issue. He noted he became self-employed
when he had to change industries due to an inability to perform any
building trades as a result of the left shoulder disability.
At the VA examination conducted in October 1992, the veteran reported
that he had dislocated his shoulder at least 20 times and has subluxed
it many times more than that. The veteran indicated that his shoulder
was last dislocated several years ago, approximately 4 to 5 years ago,
but has had many episodes of subluxation since that time. At the time
of the examination, the veteran complained of shoulder pain with
activities. He reported that he is mostly bothered with repetitive
activities, heavy lifting or over the head activity with the shoulder.
He also indicated that he has pain in the shoulder at night, and that
he occasionally takes aspirin and other nonsteroidal anti-inflammatory
agents for this. On physical examination, the veteran had range of
motion of 140 degrees' abduction on his left shoulder, limited by
pain. Forward flexion of his left shoulder was limited by pain at
140 degrees. External rotation of his left shoulder was limited by
pain at 45 degrees. The veteran had an area of tenderness with
palpation along his distal clavicle and there were no other areas of
point tenderness. There was no
tenderness over his supraspinatus and infraspinatus tendons. He had
negative impingement sign of his shoulder. He had a positive
apprehension sign, with examination of his left shoulder and a
positive relocation test. The examiner noted that the left shoulder
appeared to be primarily anterior as his anterior instability was
approximately one plus. He did not appear to have any inferior
instability or posterior instability. Assessment was recurrent left
shoulder dislocation.
Since it is not shown that the veteran's residuals of recurrent
separation of the left shoulder are productive of limitation of motion
of the arm at shoulder level, nonunion of humerus with moderate
deformity, dislocation of clavicle or scapula, or by nonunion of a
clavicle or scapula resulting in loose movement, we find that the
preponderance of the evidence is against granting an increased rating
for that disability. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part
4, Diagnostic Codes 5201, 5202, 5203 (1992).
Consideration has been given to the potential application of the
various provisions of 38 C.F.R. Parts 3 and 4, whether or not they
were raised by the veteran. In addition, we note that, in exceptional
cases where the schedular evaluation is shown to be inadequate, an
extraschedular evaluation may be awarded commensurate with the average
earning capacity impairment due exclusively to the service-connected
disability. 38 C.F.R. § 3.321. We do not find that this case
presents such an exceptional or unusual disability picture inasmuch as
there has been no demonstration of such related factors as marked
interference with employment or frequent periods of hospitalization as
to render impractical the application of the regular schedular
standards. In this regard we note that the veteran is self-employed,
albeit in a different industry, with no reported time lost from work
due to the disability at issue, and has not sought medical treatment,
not to mention hospitalization, for the left shoulder in recent years.
ORDER
An increased rating for residuals of recurrent separation of the left
shoulder is denied.
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
*
U. R. POWELL (Member temporarily absent)
LAWRENCE M. SULLIVAN
*38 U.S.C.A. § 7102(a)(2)(A) (West 1991) permits a Board of Veterans'
Appeals Section, upon direction of the Chairman of the Board, to
proceed with the transaction of business without awaiting assignment
of an additional member to the Section when the Section is composed
of fewer than three Members due to absence of a Member, vacancy on
the Board or inability of the Member assigned to the Section to serve
on the panel. The Chairman has directed that the Section proceed
with the transaction of business, including the issuance of
decisions, without awaiting the assignment of a third Member.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a
decision of the Board of Veterans' Appeals granting less than the
complete benefit, or benefits, sought on appeal is appealable to the
United States Court of Veterans Appeals within 120 days from the date
of mailing of notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board was filed
with the agency of original jurisdiction on or after November 18,
1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402
(1988). The date which appears on the face of this decision
constitutes the date of mailing and the copy of this decision which
you have received is your notice of the action taken on your appeal by
the Board of Veterans' Appeals.